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State attorneys general chill climate debate with government subpoenas

Should state attorneys general use the power of their office to squelch debate on a matter of public importance? The answer is obviously “no.” But you may be surprised to hear that some state attorneys general appear to disagree.

Over the past year, several state attorneys general have sought to subpoena from ExxonMobil and the Competitive Enterprise Institute, a non-profit think tank, millions of records relating to climate change. Among them are the attorneys general from New York, Massachusetts, and the U.S. Virgin Islands.

These attorneys general are not targeting false information intended solely to induce a commercial transaction. They have sought information on donations made to think tanks and advocacy groups. One subpoena included a demand for communications between ExxonMobil and a number of journalists.

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There has been stiff resistance, and rightfully so. The attorney general for the U.S. Virgin Islands subpoenaed the records of the Competitive Enterprise Institute.

But he then withdrew the subpoena after facing a lawsuit from CEI and public outcry over the attempt by an elected official to intimidate a non-profit think tank.

Just last month, a federal district court judge required the Massachusetts attorney general to participate in discovery aimed in part at determining if her decision to investigate ExxonMobil was made in bad faith and tainted by bias.

More recently, that judge extended that requirement to the New York attorney general.

Many, including journalists and a professor at Columbia Law School, have called these investigations an abuse of power. In launching his own inquiry into the subpoenas, Texas Congressman Lamar Smith said that these attorneys general are:

“Us(ing) their prosecutorial powers to stifle scientific discourse, intimidate private entities and individuals, and deprive them of their First Amendment rights and freedoms.”

As the chief legal officer of the state, a state attorney general has several important duties. Among these are protecting the state’s consumers, especially where those individuals do not have the ability or resources to fight back.

An attorney general can step in to protect consumers in the state and encourage better business practices. This process sometimes involves a targeted use of the subpoena power.

But we are also charged with ensuring that the people’s constitutional rights, such as those found in the First Amendment, are vigorously protected.

We each take an oath to defend not only our state constitutions, but the federal constitution, as well. And the First Amendment is specifically intended to protect the people from a government that would choose which views on matters of public importance are acceptable and which are not.

We were each elected to carry out the duties of our office in good faith and to the best of our abilities. That means aggressively pursuing potential cases of fraud that violate consumer protection laws, but also doggedly protecting the right to free speech.

Attorneys general have a duty to vigorously defend the First Amendment. Unfortunately, burdensome and far- reaching subpoenas are punishing companies with which some attorneys general disagree, and chilling debate on an issue of public importance.

As the United States Supreme Court has said, “free speech, thought, and discourse are ... a foundation of our freedom.” If the government objects to speech, “the remedy to be applied is more speech, not enforced silence.”

Patrick Morrisey serves as attorney general for West Virginia.

The views expressed by contributors are their own and not the views of The Hill.